Citation Nr: 1531252
Decision Date: 07/22/15 Archive Date: 08/05/15
DOCKET NO. 12-31 444A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to service connection for pulmonary interstitial fibrosis, claimed as a breathing problem, to include as due to herbicide exposure.
2. Entitlement to an initial rating for bilateral hearing loss greater than 20 percent.
3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant, and his wife and daughter
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The Veteran had active service from November 1967 to November 1969, and he served in Vietnam from April 1968 to April 1969.
This matter came before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA).
The Veteran, his wife, and his daughter testified at an RO hearing in January 2013. He and his wife testified before the undersigned Veterans Law Judge (VLJ) sitting at the RO in June 2015. Transcripts of both hearings are of record.
This appeal was processed using the Virtual VA paperless claims processing systems, i.e., Virtual VA and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of an electronic record.
VBMS reflects that the Veteran filed a notice of disagreement (NOD) in April 2015 to a March 2015, rating decision denying a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) stating that he could not work due to his service-connected post-traumatic stress disorder (PTSD). Generally, when an issue is placed in appellate status by the filing of an NOD, the Board must remand the claim to the RO for preparation of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9. Here, under 38 C.F.R. § 4.16(a) the Veteran meets an initial schedular requirement for a TDIU rating but, as yet, no SOC has been issued.
There was additional evidence added to the record after the issuance of the February 2013 supplemental statement of the case both prior to and after certification of the issues to the Board. The Board finds that this additional evidence was neither relevant such that the issuance of a supplemental statement of the case was required as set forth in 38 C.F.R. § 19.37(a), nor pertinent such that solicitation of a waiver was necessary as set forth in 38 C.F.R. § 20.1304(c).
The issues of entitlement to a TDIU rating and to service connection for pulmonary interstitial fibrosis, claimed as a breathing problem, to include as due to herbicide exposure, are addressed in the REMAND portion of the decision below and are REMANDED.
FINDING OF FACT
The Veteran's service-connected hearing loss of the right ear has been manifested by no more than auditory acuity Level IV and hearing loss of the left ear has been manifested by no more than auditory acuity Level VII.
CONCLUSION OF LAW
The criteria for an initial rating for bilateral hearing loss greater than 20 percent are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.7, 4.21, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes on VA an obligation to notify claimants what information or evidence is needed for claim substantiation prior to an initial unfavorable decision but, if not, any such error may be cured by providing notice followed by readjudication. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. In service connection claims, the VCAA imposes a duty to inform a claimant of all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Also, the VCAA imposes a duty to assist claimants by making reasonable efforts to get needed evidence. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
Here, the RO provided the Veteran with notice of the elements required for service connection and of the respective evidence gathering duties by letter in April 2011 as to the claim for service connection for hearing loss, and again by letter in July 2011 as to the claims for service connection for hearing loss and breathing problems. Both were prior to the initial adjudication of the claims for service connection. They also provided notice of how disability ratings and effective dates are assigned. Dingess, Id.
The Veteran's claim for a higher initial rating for his hearing loss arises from a disagreement with the initial disability rating, in January 2012, that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case.
As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation. The Veteran's service treatment records (STRs) are on file. Relevant VA clinical records are also on file and he has been afforded two audiology evaluations, in 2011 and 2013. 38 U.S.C.A. § 5103A(a)(1) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) and Locklear v. Nicholson, 20 Vet. App. 410, 418 - 19 (2006); and 38 C.F.R. § 3.159(c)(4)(i) (2014).
The Board finds that the examinations are adequate for adjudication because they included an interview with the Veteran and audiometric testing. Therefore, no further examination is necessary. Also, the adequacy of the examinations has not been challenged. While the service representative indicated at the travel Board hearing, at page 4 of the transcript, that his review of the electronic records had not found a recent VA audiology examination report, the reports of audiology examinations in October 2011 and February 2013 are contained therein.
38 C.F.R. § 3.103(c)(2) requires that one presiding at a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked but does not require providing such information as to equate with preadjudication of any claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the questioning and testimony at the hearing focused on the elements for claim substantiation. The issues on appeal were identified and the representative and the presiding hearing officer at the RO and the VLJ at the travel Board hearing specifically elicited testimony from the Veteran as to the relevant clinical history and needed elements for claim substantiation.
While assistance is required, 38 C.F.R. § 3.103(c)(2) does not mandate that one presiding at a hearing preadjudicate the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (per curiam). Moreover, neither the Veteran nor representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the RO or travel Board hearing. By contrast, the hearings focused on the elements necessary for claim substantiation and the Veteran, via testimony, demonstrated actual knowledge of the elements necessary for claim substantiation.
As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance.
Background
On official audiology examination in October 2011 the Veteran reported that his overall functional impairment from hearing loss was that he had difficulty hearing people in all situations. Audiometric testing revealed puretone thresholds, in decibels, at the noted frequencies, were as follows:
Hertz (Hz)
500
1000
2000
3000
4000
Right Ear
50
45
45
60
75
Left Ear
55
55
70
80
80
Word recognition scores were measured using the recorded Maryland CNC Word Lists, and scores were 76 percent in the right ear and 64 percent in the left ear.
At the January 2013 RO hearing the Veteran testified that he sometimes had to read lips to understand people because of his hearing loss and had to ask people to repeat themselves. He also had difficulty in group settings. Page 3 of the transcript. He stated that at his last hearing examination he had only been guessing when he pushed the buttons to respond to auditory stimuli. His wife testified that she often had to repeat herself to the Veteran. His daughter stated that she had to raise her voice, and practically scream, for the Veteran to hear her. Page 4. The Veteran testified that he turned the volume of the television very loud. Page 5.
On official audiology examination in February 2013 audiometric testing revealed puretone thresholds, in decibels, at the noted frequencies, were as follows:
Hz
500
1000
2000
3000
4000
Right Ear
50
50
60
60
70
Left Ear
45
60
60
75
85
Word recognition scores were measured using the recorded Maryland CNC Word Lists, and scores were 76 percent in the right ear and 72 percent in the left ear. Both forms of testing were considered valid. The diagnosis was a bilateral sensorineural hearing loss from 500 to 6,000 Hz and above. The Veteran reported that his overall functional impairment from hearing loss was that he had difficulty hearing people and had to ask them to repeat themselves, and had to use lip reading for comprehension.
At the travel Board hearing the Veteran testified that his hearing was so poor that he had to turn up the volume of his television, and his wife testified that this bothered her. Pages 4 and 5. He stated that he had difficulty hearing his wife and when in a crowed environment. Page 5.
Increased Rating
Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present. 38 C.F.R. § 4.1, 4.2. A higher disability rating is assigned if a disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All the elements specified in a disability grade need not necessarily be found, although coordination of disability ratings with impairment of function is always required. 38 C.F.R. § 4.21. Reasonable doubt will be resolved in a claimant's favor. 38 C.F.R. § 4.3. Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings).
The assignment of a disability rating for hearing impairment is devised by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable rating criteria, a rating for bilateral hearing loss may range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level in decibels (dbs), measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hz. 38 C.F.R. § 4.85(a) and (d). Audiometric examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a).
The Rating Schedule establishes eleven auditory acuity levels under 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b).
Puretone threshold average, measured in decibels, as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d).
Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e).
Under 38 C.F.R. § 4.86(a) when the puretone threshold at each of the four specified frequencies 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral.
Under 38 C.F.R. § 4.86(b) when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86.
October 2011 Examination
The audiology examination of October 2011 revealed that the left ear had 64 percent speech discrimination. Decibel loss at the puretone threshold of 1000 Hz was 55, with a 70 dB loss at 2000 Hz, a 80 dB loss at 3000 Hz, and a 90 dB loss at 4000 Hz. The average decibel loss was 73.75 in the left ear.
From Table VI of 38 CFR 4.85, Roman Numeral VII is derived for the left ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. The Veteran demonstrates an exceptional pattern of hearing impairment. Thus, from Table VIa of 38 CFR 4.85, Roman Numeral VI is derived for the left ear.
The audiology examination of October 2011 revealed that the right ear had 76 percent speech discrimination. Decibel loss at the puretone threshold of 1000 Hz was 45, with a 45 dB loss at 2000 Hz, a 60 dB loss at 3000 Hz, and a 75 dB loss at 4000 Hz. The average decibel loss is 56.25 in the right ear.
From Table VI of 38 CFR 4.85, Roman Numeral IV is derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column.
Transposing Levels VII and IV to Table VII, shows that a 20 percent disability rating, and no more, is the proper disability rating to be assigned.
February 2013 Examination
The audiology examination of February 2013 revealed that the left ear had 72 percent speech discrimination. Decibel loss at the puretone threshold of 1000 Hz was 60, with a 60 dB loss at 2000 Hz, a 75 dB loss at 3000 Hz, and a 85 dB loss at 4000 Hz. The average decibel loss was 70 in the left ear.
From Table VI and Table VIa of 38 CFR 4.85, Roman Numeral VI is derived for the left ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column.
The audiology examination of February 2013 revealed that the right ear had 76 percent speech discrimination. Decibel loss at the puretone threshold of 1000 Hz was 50, with a 60 dB loss at 2000 Hz, a 60 dB loss at 3000 Hz, and a 70 dB loss at 4000 Hz. The average decibel loss was 60 in the left ear.
From Table VI of 38 CFR 4.85, Roman Numeral IV is derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column.
Transposing Levels VI and IV to Table VII, shows that a 20 percent disability rating, and no more, is the proper disability rating to be assigned.
Thus, under the schedular rating criteria an evaluation of 20 percent is the proper disability rating for assignment by virtue of the results of the audiology examinations in both 2011 and 2013.
"The Secretary [of VA], in an internal guidance document, recently reaffirmed the need for VA audiologists to describe the effect of a hearing disability on a claimant's occupational functioning and daily activities." See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).
"The policy of describing the results of all tests conducted makes sense, particularly in the context of the extraschedular rating provision. 38 C.F.R. § 3.321(b). Unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. The Secretary's policy facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).
Here, the audiologists that conducted the examinations elicited from the Veteran information concerning difficulties from hearing loss. It was noted that he had difficulty hearing, in essence, when there was background noise. The Veteran has not described any adverse impact upon his daily activities and interactions with people than that which is to be expected in cases of hearing loss, although the fact that he has a hearing loss indicates that there has most likely been at least some adverse impact. This is sufficient to comply with the applicable VA policies. See Martinak, Id.
The Board finds that at no time during this appeal has the Veteran's service-connected hearing loss has been more than 20 percent disabling, so his rating cannot be "staged" because this rating represents his greatest level of functional impairment attributable to this condition during that time period. Thus, there is no basis for further staged rating of the disability pursuant to Hart, Id.
Extraschedular Consideration
The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1). This requires a comparison between the level of severity and the symptomatology of the disability with the schedular rating criteria and if the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).
If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, it must be determined whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra.
In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. The testimony in this case shows only the type of impairment which is to be anticipated in all cases of hearing loss. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. Thun, supra; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 91996); Floyd v. Brown, 9 Vet. App. 88, 996 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, the Board finds that there are no additional symptoms that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.
For all of the foregoing reasons, the Board finds that during this appeal the service-connected bilateral hearing loss has not been more than 20 percent disabling. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the assignment of any increased rating, that doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1361 (Fed. Cir. 2001).
ORDER
An initial rating for bilateral hearing loss greater than 20 percent is denied.
REMAND
Service Connection Claim
The Veteran served in Vietnam from April 1968 to April 1969 and is presumed to have been exposed to herbicides. The service treatment records (STRs) are negative for a chronic pulmonary or respiratory disability. The November 1969 examination for separation was negative and a chest X-ray was negative. In an adjunct medical history questionnaire he reported not having or having had shortness of breath, pain or pressure in his chest, or palpitations or pounding heart.
In the Veteran's March 2011 claim for service connection he reported his breathing problems began and having been treated at the Oklahoma City VA Medical Center (VAMC) in January 1970. In April 2011 the RO requested those records.
However, while VA records since 1980 have been reviewed, from the record it is not clear that records prior thereto and since, as claimed by the Veteran, 1970 are not available.
VA clinical records from Oklahoma City show that in August 1980 it was noted that he had been hospitalized in New Castle, Wyoming last week due to a cough and "tachypnea." He was now on medication to "open" his lungs. A VA chest X-ray in August 1980 revealed some apical pleural thickening with some fibrotic changes, bilaterally, but the impression was that there was no active chest disease. In September 1980 it was noted that in the past 1 1/2 years he had been bothered by episodes of wheezing and coughing to the point that recently, in Wyoming while driving a truck, he had such difficulty breathing that he collapsed at the wheel, and he was subsequently rechecked at the VA facility for further care. In October 1980 it was suspected that he had episodic asthma and had had some improvement on Aminophylline. His medication was changed to Theodur.
VA clinical records show that in October 1980 it was reported that the Veteran had medication which helped his shortness of breath but that he continued to smoke. He smoked between 1 and 1 1/2 packs of cigarettes daily.
On an Agent Orange evaluation in 1984 which focused upon his fertility, it was reported that he had an occasional cough and episodic shortness of breath. He had been given Theodur in 1980 which he felt had not helped.
VA clinical records of Crescent, Oklahoma, show that in September 2003 the Veteran related a history of the onset of difficulty breathing with exertion in 1979. He had a history of blackout spells since 1970, and the current frequency was about once every 3 months lasting for a few seconds. In October 2003 it was noted that he was apparently seen at that facility in the 1980s for an Agent Orange work-up and a nurse had told him that he had an irregular heartbeat. He had quit smoking about 15 years ago.
VA records in August 2008 show that he was seen for having a cough for the past month, even though he had quit smoking in 1988. That morning he had an episode of lightheadedness with sweating and fatigue. The impression was that he had hyper-reactive airways of unclear etiology. He also received more extensive respiratory evaluations and treatment that month.
The Veteran underwent VA hospitalization from the 15th to the 18th of August 2008 and the diagnosis was pulmonary interstitial disease. He had a 3 month history of worsening dyspnea, wheezing, and coughing.
VA clinical records show that in February 2011 he denied a history of severe lung problems in the past, including shortness of breath and dyspnea on exertion. However, also in February 2011 a preoperative (hip replacement) evaluation indicated that he had mild, if any, pulmonary fibrosis with normal lung function. In March 2011 it was reported that pulmonary function testing revealed that vital capacity (VC) was reduced suggesting a restrictive defect.
An entry in VBMS of April 5, 2011, indicates that the Veteran was seen at the Oklahoma City VAMC from 2003 to 2011, including in August 2008 for early interstitial pulmonary fibrosis.
An April 2011 Report of General Information shows that upon telephonic contact the Veteran stated that he did not have any records from the Oklahoma City VAMC.
At the January 2013 RO hearing the Veteran testified that he had begun having breathing problems in 1970 but had not sought VA help because he did not know that VA would do so. Page 5. In 1978 he had passed out and his first wife had taken him to a hospital for what appeared to be a heart attack but the attending physician had stated that the Veteran's heart was beating too fast. That physician had indicated that he had not seen anything like that and that the Veteran should seek further evaluation. The Veteran had then sought VA treatment but when his appointment came due he was told that the VA physician was on vacation, and the Veteran never returned for follow up. Page 6. The 1978 incident had occurred in New Castle, Wyoming. Page 7. The Veteran testified that during service, including prior to service discharge, he had not had any breathing problems. When he first developed breathing problems in 1970 he had not sought medical evaluation because he had to work. Page 8. He and his wife stated that he now used an inhaler. Page 9. His medical records indicated that he had once had a partial collapse of a lung but he stated that he had never had anything done for it. Pages 9 and 10. The Veteran's daughter testified that he had had breathing problems all of her life. Page 11.
VA CAPRI records from the Oklahoma City VA Medical Center show that an April 2, 2014, clinical record reflects that the Veteran related that in 1976 he drove his truck into a guard rail. In February 2015 his problem list included early interstitial pulmonary fibrosis.
At the June 2015 travel Board hearing the Veteran was informed that the RO had denied his service connection claim because his lung disorder was not shown to be due to his in-service herbicide exposure while in Vietnam. Page 3. As to the service connection claim, the presiding Veterans Law Judge noted that the Veteran had served in Vietnam, from April 1968 to April 1969 and, so, was exposed to herbicides. The Veteran testified that he developed breathing problems about 6 or 7 months after serving in Vietnam. He had gone to VA for help but had been refused. He did not recall VA ever having afforded him an examination as to his claim for breathing problems. Page 7. The representative indicated that in his search of VA electronic records there was no indication of such an examination, and so there was no diagnosis but it was requested that the Veteran be afforded a VA nexus examination. The Veteran testified that he had served in Vietnam as an infantryman. He further clarified that he had sought and been refused help by VA in about 1974 or 1975. Page 8. During the interim between his having first sought VA help (in 1974 or 1975) and now, he had not again gone to VA for help. On the other hand, he also testified that he had gone back to VA for help (perhaps on more than one occasion) and on one occasion was told that the physician was on vacation and on another that he had gone to the wrong VA facility. Currently, his breathing problems caused difficulty sleeping and when he exerted himself. Page 9.
While the Veteran testified that he had not sought VA help, he also testified that VA had given him pills to help him sleep but the pills had not helped. His wife testified that he used two inhalers, including Symbicort, that he had been given by VA in Oklahoma City. Page 10. The Veteran and his wife indicated that their research on the Internet had suggested that his breathing problems were due to herbicides. Page 11. The Veteran stated that a "guy" at a VA medical facility had indicated that this could be the "situation." Page 12. The Veteran testified that he had no family history of breathing problems. Page 13. The Veteran testified that when he was in Wyoming in about 1976 or 1978 a VA physician told him that the physician had never seen anything like the Veteran's case. Pages 13 and 14. At that time he had had a very fast heart beat and it had taken three days for them to slow his heart beat down. Page 14.
TDIU
In an April 2015 NOD disagreement was expressed with the RO's March 2015 denial of a TDIU rating, initiating appellate review. The next step in the appellate process is for the RO to issue to the Veteran and the Veteran's representative an SOC. See 38 C.F.R. § 19.29 (2014); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of a SOC. The Board emphasizes, however, that to obtain appellate review of an issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2014).
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for service connection for pulmonary interstitial fibrosis, claimed as a breathing problem, to include as due to herbicide exposure.
Contact the Veteran and his representative and request that they provide, in an organized and preferably chronological fashion, detailed information as to the places (with full names and addresses) and inclusive dates of all postservice (a) hospitalizations, (b) treatment, or (c) evaluations for respiratory or pulmonary disability, to include, as suggested by the Veteran's testimony, any which pertains to other disability(ies) which were allegedly mistaken for pulmonary disability (e.g., as to the testimony of hospitalization for what was mistakenly thought to be a heart attack or heart disease some time from about 1978 to 1980 in New Castle, Wyoming). Provide them with any needed authorization or release forms.
In particular, and given the Veteran's testimony as to dates and places of putative VA treatment or evaluation, request that he provide detailed information as to all places (with full names and addresses) and inclusive dates of all postservice VA (a) hospitalizations, (b) treatment, or (c) evaluations for respiratory or pulmonary disability
Then, attempt to obtain all VA medical records not already in evidence. This should include a search of all possible VA records from 1970 to 1980 at the Oklahoma City VA Medical Center.
Based on the Veteran's response, attempt to procure copies of all non-VA records which have not previously been obtained from identified treatment sources.
All attempts to secure this evidence must be documented. If, after making reasonable efforts any records cannot be obtained, notify the Veteran and his representative (a) identifying the specific records which cannot be obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond.
2. Thereafter, afford the Veteran a respiratory examination for the purpose of determining whether any respiratory or pulmonary disability which he now has, including pulmonary interstitial fibrosis, had its inception during military service or is otherwise related to his military service, to include rendering an opinion as to whether any current respiratory or pulmonary disability which he now has is related to service to include in-service exposure to herbicides.
The examiner is requested to provide an opinion as to the following question:
Whether it is at least as likely as not (50 percent or greater probability) that the pulmonary interstitial fibrosis the Veteran has now is related to service to include in-service exposure to herbicides.
In rendering this opinion, the examiner must (1) assume as true that the Veteran was in fact exposed to herbicides during his military service in Vietnam, (2) explain the significance of the absence or presence of any abnormality(ies) on any or all chest X-rays or other tests, and (3) address putative research or information, if any, which the Veteran may (and is invited to) submit in support of the claim.
In particular, because the Veteran believes that there is some link between his episodes of black-outs or loss of consciousness as well as cardiovascular problems, including irregular heart beat in the decade following his service, the examiner is asked to comment on the significance if any of black-outs or loss of consciousness as well as cardiovascular problems with respect to the onset or development of any chronic pulmonary disease, including the claimed interstitial pulmonary fibrosis.
All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.
3. The RO/AMC must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the record demonstrating any notice that was sent was returned as undeliverable.
4. The RO/AMC must issue to the Veteran and the Veteran's representative an SOC addressing the claim for a TDIU rating. Along with the SOC, the RO/AMC must furnish to the Veteran and the Veteran's representative a VA Form 9 (Appeal to the Board of Veterans' Appeals), and afford them the applicable time period for perfecting an appeal as to this issue.
The Veteran and the Veteran's representative are hereby reminded that appellate consideration of the matter identified above, i.e., a TDIU rating may be obtained only if a timely appeal is perfected.
5. Thereafter, ensure that all needed development as to the claim for service connection for pulmonary interstitial fibrosis, claimed as a breathing problem, to include as due to herbicide exposure, has been accomplished.
Then readjudicate this service connection claim and if it remains denied furnish the Veteran and his representative a supplemental SOC (SSOC) and afford them the appropriate period of time within which to respond, at their option. Then, return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs